Advertising is part of law firm management

As of February 1st, New York adopted a new set of rules and regulations concerning law firm advertising. These rules apply to any attorney based in New York, representing clients in New York or seeking clients in New York.

Obviously, that doesn’t apply to all attorneys in the country. So why should the rest of us care? Because what New York Bar does will affect the thinking of other Bars …. For example, the California Bar is now reviewing its rules, currently less stringent and more predictable than New York’s. Others are as well.

First, why are we discussing this issue now anyway? Wasn’t the rule, whatever it is, well-established? The simple answer most probably is that there are some lawyers, in their attempt to be noticed and differentiate themselves from other lawyers, have breached the boundaries of taste.

For example, a well-endowed woman, sitting on a motorcycle, promoting her skills as a lawyer, is one example some thought went beyond such boundaries. She certainly did get the public’s attention … or, at least, she got the regulators attention and we now have new rules. Lawyers were consumed with this discussion. And, I suppose some male or jealous (not so-well-endowed) woman complained to the Bar.  It’s funny that advertisements in poor taste in other professions don’t result in the same fury as in the legal community.

Second, we must realize that there is a tension between regulators and lawyers. Regulators, many of whom never practiced law in a small firm setting, if at all, believe their sole duty is “to protect the public.” To do so, they are zealous, even to the extent of forgetting that their paychecks are signed by lawyers who pay dues to the Bar. Lawyers, on the other hand, perceive the Bar as a trade association, wanting the Bar to help them improve the practice of law, provide economic benefits to its members and practice management assistance. Neither those who teach in law schools nor those who "regulate" lawyers’ conduct full understand the economics of the practice … nor, unfortunately, do they care!

In California, when Governor Wilson vetoed the Bar dues bill, California lawyers refused to come to the aid of the Bar — served the leaders right, they said, for failing to remember who they worked for. Not only did the Governor “get back” at the Bar for a perceived slight of some years earlier when he had been a Senator, the lawyers of the State “got back” at the Bar by refusing to support the leaders in their effort to overturn the Governor’s veto.

Bar leaders across the country must remember, if they are to remain relevant and in power, that they have two functions; one is to protect the public (however that may be defined) and to serve the needs of its lawyers-members! Neither function is higher than the other.

Changes in the New York advertising may increase the noise level but may not mean much. For example, there is no effective disciplinary process. In California, there is a prosecutor for the Bar and a Bar trial court. California’s disciplinary system has teeth! Also, inserting disclaimers seems to ameliorate much of the angst of the new rules in New York.

And, while the new rules became effective on the first of  February, it was also on that date that a lawsuit was filed to prevent the enforcement of the rules. The argument against the rules, among others, is that the rules violate freedom of commercial speech. Several respected sources have thus opined. I think the courts will strike the rules, or most of them, as currently constituted.

The real standard should remain “truth in advertising.”

Third, the New York rules appear to be divided into three segments: Advertising, solicitation and electronic communication.  Solicitation is prohibited unless the communication is to a “…close friend, relative, former client or existing client.”  Of course, that would prevent all networking and other forms of professional communication to inform people that you may be able to address their current challenges.  Or as one cynic suggested, our “close friends” have suddenly become a much larger group than before!

And, I suspect that the rules concerning electronic communication will continue to evolve because of rapidly changing technology. Suffice to say at this point, that lawyers are required to keep hard copy of their web sites for at least one year, making copies every 90 days and more often if major site changes occur before then.

All in all, this heated conversation is only the first of many that will be conducted and heard across the country in years to come … It’s unlikely that the staffs of Bar associations will lose their fervor or become more concerned about the economic well-being of their members. In fact, many staff have openly suggested that their should be a “culling” of lawyers currently practicing (“get rid of the ‘bad’ lawyers”) and that bar entry should be more stringent. Because of this attitude, one defense lawyer said that it is a waste of time to review proposed changes to rules of professional conduct — the protagonists don’t review the comments that have taken many hours to prepare! Of course, for these lawyers, it will only mean more business, defending quality lawyers who have over-stepped unreasonable guidelines created by people insensitive to the realities of small firm law practice and the needs of their clients.

In California, again for example, there is a proposed rule that lawyers must disclose when they do not carry malpractice insurance. Does this protect the public? I don’t think so. Mandating malpractice insurance might, but not disclosure that coverage is not carried. Does the Bar make an effort to effect low cost malpractice insurance so that it is affordable for all lawyers? No! That would be a member benefit … and heaven help us if the Bar were to create benefits for its members. And especially not when the Bar derives economic benefits ("royalty" payments or percentage of the premiums charged by the insurance carriers "blessed" and promoted by the Bar). Does this seem like a conflict of interest for the Bar?

Last year, the then president of the California State Bar announced that the Bar would have two functions in the future, protecting the public and benefitting members. Though the leaders fail to acknowledge it, they quickly lost sight of the 2nd function. Don’t expect them to remember it soon.


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